Van Sandt v. Royster
Citation: 148 Kan. 495 (1938)
Facts
Bailey, a common grantor, had a sewer drain running from his lot through adjacent lots he owned, ultimately connecting to a public sewer. He conveyed the adjacent lots without expressly mentioning the sewer easement. Van Sandt, who later purchased one of the adjacent lots, objected to continued use of the sewer drain running under his property.
Issue
Was an easement for the sewer drain implied by a prior use when Bailey conveyed the adjacent lots?
Holding
Yes. An easement was implied by prior use because: (1) Bailey had used the sewer drain continuously and apparantly across the parcels when in common ownership, and (2) the drain was reasonably necessary for the enjoyment of the dominant parcels (the lots that continued to use the drain). Van Sandt was charged with inquiry notice of the drain.
Rule
Implied easement by prior use: When an owner of multiple parcels uses one parcel in a manner benefiting another, and then conveys one of the parcels, an easement may be implied if: (1) the use was apparent or visible (even if underground, inquiry notice may apply), (2) the use was continuous, and (3) the easement is reasonably necessary (not strictly necessary) for the use and enjoyment of the dominant parcel.
Notice: A buyer is charged with inquiry notice of an observable or discoverable easement — here, the visible sewer drain connections and plumbing fixtures should have prompted inquiry.
Significance
- Classic case for implied easements by prior use
- Establishes inquiry notice for buried utilities that are discoverable with reasonable investigation
- Distinguished from easements by necessity: necessity requires landlocking; prior use requires apparent, continuous quasi-easement + reasonable necessity
- Shows that sellers may retain implied easements even without express reservation if the prior use was apparent and continuous